Over the past decade, many Latin American countries have experienced a rapid rise in the number of lawsuits that seek to protect people’s fundamental right to health. This “judicialization” of health is the result of a complex interplay of factors: Public health systems in the region are weak; the costs of providing good healthcare greatly exceed the resources available; and this gap between resources and need is widening. Meanwhile, other factors are converging as well: Citizens are increasingly informed about their rights and prepared to enforce them in court; the influence of the pharmaceutical industry is increasing; and judges often do not have the technical information and expert advice they need to make sound legal decisions in this arena.
Over the past three years, Reos Partners has supported the World Bank Institute to explore this phenomenon through a series of regional forums bringing together a diversity of stakeholders to exchange stories of recent cases and events, map out patterns, discover shared questions, and create innovative strategies to be tested and learned from in practice.
Acknowledging the role that the various sectors need to play in this issue, the organizers of the regional forums have engaged superior court judges, doctors, ministers and vice ministers of health, ombudspersons, lawmakers, professors, researchers, civil society representatives, and officials from international organizations. In addition to exploring the causes underlying the rise in health-related litigation, the process seeks to promote initiatives that can enable the “progressive realization” of the right to health in the region, acknowledging that this outcome cannot be achieved overnight.
Most recently, the stakeholders gathered in Brasília, Brazil on 3-5 June, 2013, for the third regional forum. The seven countries participating in the process are Argentina, Brazil, Chile, Colombia, Costa Rica, Peru, and Uruguay. The event in Brasília also included guests from Morocco, Kenya, and Spain.
Until now, the judicial and healthcare systems have rarely engaged in a constructive and genuine dialogue—something that is truly essential for making sustainable, systemic progress on this issue. The stakeholders across these systems all share an interest not only in securing the right to health, but also in achieving that right by building health systems that really work, rather than through judicialization.
To explore the situation, the group posed a number of generative questions, such as:
How can we create a system of prioritization of health services that is transparent and perceived as legitimate by the population?
How can we build the capacity of the judicial system so that responses to court cases will be consistent with this prioritization?
How can we promote inter-sectoral dialogue and information-sharing?
How can we give judges more access to the information they need to make evidence-based decisions?
How can we deal with the conflict of interest created by the connection of many doctors to the pharmaceutical industry?
The third regional forum adopted an iterative approach based on rooting perceptions and ideas in concrete, local realities and creating space for learning and cross-pollinating ideas at the regional level. Each participating country left the forum with a specific strategy informed by regional analysis of real cases, presentations of innovative experiences, dialogue around core regional themes, and cross-country feedback. The stakeholders will meet again at the fourth regional forum in 2014 to review the results and lessons from this cycle of strategic implementation.
According to the participants:
“This process is very important for the judges, because the inter-sectoral dialogue allows us to understand what other sectors are thinking and allows them to understand what we are doing as well. The health ministries thought we were against the government, when we are really just in favor of citizen health. A concrete action coming out of this event is the motivation of our national council of justice to increase transparency of the judiciary, to make our decisions more comprehensible to the population and to itself.”
“We have achieved extraordinary things in this event. The constitutional court has agreed on a joint programme here with the social security system of our country. The social security system was always a victim of the court, and the court was always accusing the social security system of not doing enough. We will be starting a programme on evidence-based medicine in collaboration with Brazil, which will help us greatly. This has been an extraordinary success, very productive and very rich.”
The judicialization of health and the progressive realization of the right to health in Latin America is a complex problem that will take many years to address. We trust that the relationships built—and the insights and ideas generated in this process— are contributing to that systemic shift.
For more information, see saluderecho.net